United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1940, American Federation of Government Employees (AFGE), AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Agriculture, Plum Island Animal Disease Control Laboratory, Greenport, New York (Employer or PIADC).

    Following an investigation of the request for assistance, the Panel determined that the impasse, arising from bargaining over a successor collective bargaining agreement (CBA), should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the impasse, including the parties’ final offers and his recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Accordingly, Executive Director H. Joseph Schimansky met with representatives of the parties at Plum Island on January 20, 1999, but only one of the two issues at impasse was resolved.⁽¹⁾ Mr. Schimansky has reported to the Panel regarding the issue that remains in dispute, and it has now considered the entire record.⁽²⁾

BACKGROUND

    The Employer’s mission is to conduct research and diagnostic testing on foreign animal disease agents and provide training to prevent foreign animal diseases from entering the United States. There are approximately 30 non-professional General Schedule and Wage Grade employees in the bargaining unit who hold positions such as laboratory technician, quality assurance specialist, facilities management specialist, animal caretaker, environmental protection specialist, and safety specialist. The parties’ CBA, which was to have expired in September 1996, has been rolled over annually, and continues in effect until a successor is implemented.

    Plum Island is located off the eastern point of Long Island, New York. To get to the Employer’s facilities, employees take either a 20-minute ferry boat ride from Orient Point, Long Island, or a 45-minute ride from Old Saybrook, Connecticut. The Employer furnishes the transportation from both locations. Since approximately 1958, employees have been paid for the time they spend on the ferry boat traveling to Plum Island; they are in a duty status from the time the ferry boats depart from the harbors in either New York or Connecticut. For the return trip home, however, employees are not compensated for travel time on the ferries. The practice of paying employees only for one-way travel to Plum Island became part of agency regulations in 1965.

ISSUE AT IMPASSE

    The parties disagree whether employees should be in a pay status while returning from Plum Island on Government-furnished vessels.

POSITIONS OF THE PARTIES

1. The Union’s Position

The Union proposes the following wording:

Where employees are required to report to an assembly or rally point proceeding on Employer-provided transportation to the work site, their workday shall begin and end when they report to such point at the beginning of their workday and are returned to that same assembly or rally point.

Because employees are in a non-pay status when leaving Plum Island, they are being "penalized" since they are "off duty but detained" by the Employer for the duration of the ferry boat rides. Although it is unclear why the Employer started this policy, it is unfair not to compensate employees for the return trip when it is "identical to the trip to the island," and employees are not required to do any work while in transit. Moreover, the situation at Plum Island is unique, and distinguishable from "the everyday travel that all employees do, from the residence to the workplace." In this regard, the Employer’s mission requirements, as mandated by Congress, restrict employees to the premises. There are also other conditions of employment which are required and justify compensation for the time spent on the return trip, such as working on wet floors and in confined space, wearing protective devices while performing a number of duties, and taking several showers during the workday. Finally, the wording it proposes is taken from the 1984 contract between the North Atlantic Region of the National Park Service and AFGE Local 3432 which is still in effect. The fact that similarly-situated employees currently receive the same benefit is further evidence of the reasonableness of the Union’s proposal.

2. The Employer's Position

    The Panel should order the Union to withdraw its proposal for a number of reasons. Its adoption "would adversely impact the ability of the PIADC to accomplish its scientific program activities and mission effectively." Employees are already being paid for the morning boat ride from the mainland, and for additional "nonproductive" activities during the duty day, such as changing in and out of laboratory clothing, "showering out" (for biosecurity reasons), and boarding a bus to be transported to the dock to board the boat. The Union’s proposal would decrease the amount of productive time for the employees from Orient Point to approximately 6½ hours per 8-hour workday, and to approximately 6 hours for those employees traveling to and from Connecticut. As the Acting Director of the PIADC indicates in a written statement, the Employer is already finding it difficult to complete all of its required obligations. A further reduction in the amount of productive time spent in the laboratory "could result in serious consequences," such as the spread of "classical swine fever."

    The financial impact of the salary costs of the additional reduction in productive work time that would result from adoption of the proposal is about $72,000 per year. When coupled with additional increases in contractor salary costs ($408,000 per year) and marine transportation costs ($79,841 per year), the total annual cost would be close to $560,000. Moreover, if bargaining-unit employees have their return trip included as part of their 8-hour workday, the employees of the private contractor who provide numerous services at the PIADC would probably propose similar treatment during their next collective bargaining negotiations. This would "further increase the PIADC operating cost to the Employer."

    The existing practice "appears to be fair and reasonable and has worked well for over 40 years," and the Union has failed to explain how the adoption of its proposal would address the concern it expressed during negotiations "that employees are restricted to Plum Island during the workday." Management "cannot change the fact that employees who choose to work at the PIADC" will be subject to this restriction. Moreover, the Union’s proposal would neither "improve the productivity of the PIADC" nor "enhance the services provided by the PIADC to the food-consuming public or the U.S. livestock industry." Finally, its proposal is "inconsistent" with Comptroller General decisions, court decisions, and the Portal-to-Portal Act of 1947.

CONCLUSIONS

    After carefully considering the evidence and arguments on the issue at impasse, we shall order the Union to withdraw its proposal. Preliminarily, the Panel has long held that a party proposing to change an existing practice bears the initial burden of demonstrating the need for doing so. The primary justifications provided by the Union in support of the change it is proposing are the rather unusual conditions of employment at Plum Island, and a 1984 CBA involving apparently similarly-situated employees and another Government employer. While supplying some support for its position, we are not persuaded in the circumstances presented that they provide sufficient grounds for changing the status quo. In this regard, the practice of including only the trip to Plum Island as part of the workday has existed for over 40 years, and the potential adverse impact of adopting the Union’s proposal on the Employer’s mission and budget, in our view, outweigh the benefit it would provide to employees.

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The Union shall withdraw its proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

March 10, 1999

Washington, D.C.

1.In this regard, the Union withdrew its proposal on the issue of a paid lunch for laboratory employees.

2.The record includes brief written statements in support of the parties’ final offers on the issue.